Citation Nr: 18156837 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 12-24 362A DATE: December 11, 2018 ORDER Service connection for sleep apnea, as secondary to service-connected posttraumatic stress disorder (PTSD) based on aggravation, is granted.   FINDING OF FACT The Veteran’s sleep apnea has been aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea, as secondary to service-connected PTSD based on aggravation, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2000 to June 2004. This case is on appeal from a July 2009 rating decision. In August 2017, the Veteran testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for sleep apnea, to include as secondary to service-connected PTSD. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background and Facts The Veteran contends that sleep apnea symptoms had their onset during service and continued thereafter. See generally Board Hr’g Tr. In the alternative, the Veteran’s representative contends that sleep apnea was either caused or aggravated by service-connected PTSD. See March 2018 Brief in Response to Medical Expert Opinion. Service treatment records (STRs) include a report by the Veteran in a May 30, 2003 post-deployment Operation Iraqi Freedom medical assessment, that he was “still feeling tired after sleeping.” In a May 2006 lay statement, the Veteran described his service in Iraq and stated, “the first four days of the war I didn’t get any sleep;” and in a separate statement dated in May 2006, an acquaintance wrote that the Veteran was “complaining of not sleeping.” In April 2007, the Veteran again reported that he had trouble sleeping at night. In 2007, the Veteran was diagnosed with PTSD; with associated trouble falling asleep, and difficulty sleeping at night/nightmares. See, e.g., VA mental health records dated in February 2014. During a March 2009 VA mental health consult, the Veteran complained of poor sleep, a hard time going to sleep, frequent awakening, occasional nightmares, and waking up feeling tired, and said that he had been told that he “snores and stops breathing at night.” Diagnoses included PTSD and “r/o sleep apnea.” A sleep consult was ordered. VA Pulmonary Consult records dated May 11, 2009, advise that a VA authorized polysomnogram conducted on April 23, 2009 had shown a diagnosis of mild obstructive sleep apnea. On VA sleep apnea examination in May 2016, the examiner noted that the Veteran had been clinically diagnosed, via sleep study, as suffering from obstructive sleep apnea on April 23, 2009. The examiner then stated that he was unable to provide a nexus opinion because “the sleep complaints noted in the STRs are too vague to attribute to sleep apnea without resorting to speculation.” In August 2017, the Veteran testified at a Board hearing that he noticed symptoms including a change in his sleep pattern, loud snoring, waking up choking and gasping, and restless sleep in 2003 after he returned from his deployment to Kuwait. He also stated that he believed that his symptoms worsened after his deployment to Iraq, where in fulfilling his duties as a truck driver, he was unable to get adequate sleep. The Board requested expert medical opinions from the Veterans Health Administration (VHA). In January 2018, a VHA pulmonologist reviewed the claims file and opined that the Veteran’s sleep apnea likely did not begin during service. The pulmonologist explained that though the Veteran reported that he began to suffer from loud snoring, and a lack of energy/daytime sleepiness in 2003 while he was in service, this happened in the setting of active duty where he was unable to get adequate sleep and was often sleep deprived. In addition, the pulmonologist stated that although the symptoms that the Veteran reported raise the possibility of sleep apnea, there is no objective data to show the Veteran had sleep apnea while he was on active duty. The pulmonologist found it significant that the Veteran “was not evaluated or treated for obstructive sleep apnea during the 4-year period of active duty service and for another 5 years after that.” The pulmonologist also noted that the Veteran’s symptoms of poor sleep and daytime sleepiness could be attributable to PTSD and depression. A second VHA expert medical opinion was authored in July 2018 by a VA sleep disorder specialist. The physician reviewed the claims file and concluded that it is not as likely as not that the Veteran’s sleep apnea began during active duty service, or is otherwise related to any incident of active duty service. The physician explained that although the Veteran reported sleep related complaints, those symptoms were very vague. The physician also noted that the symptoms associated with sleep apnea such as nocturia and dry mouth upon waking were absent from the clinical notes. The physician stated that the Veteran’s sleep symptoms may be multifactorial including sleep deprivation, possible circadian misalignment, anxiety, depression, PTSD, pain syndrome, and polypharmacy, and to attribute the Veteran’s symptoms to sleep apnea would be speculative. However, the physician also opined that the Veteran’s sleep apnea is at least as likely as not secondary to his service-connected PTSD. In support of his opinion, the physician explained that medical literature provided evidence that PTSD contributes to sympathetic hyperarousal and hypervigilant states, resulting in sleep fragmentation. The physician noted further that these effects may lead to instability of upper airways during sleep and upper airway resistance, thus leading to sleep apnea aggravation. In addition, the physician explained studies show that individuals who suffer from PTSD and sleep apnea are less compliant with CPAP usage. The physician reported in this case, treatment records indicate that the Veteran showed poor compliance with using his CPAP. For these reasons, the physician concluded that the Veteran’s sleep apnea is likely aggravated by his PTSD. Analysis The evidence of record shows that the Veteran has a current disability. A June 2005 VA treatment record shows that the Veteran has as diagnosis of obstructive sleep apnea. This diagnosis was confirmed by VA Pulmonary Consult records dated May 11, 2009, advising that a VA authorized polysomnogram conducted on April 23, 2009 had shown a diagnosis of mild obstructive sleep apnea. In this case, direct service connection is not warranted under § 3.303 because the preponderance of the evidence weighs against finding a nexus exists between the symptoms the Veteran described as occurring during service and the sleep apnea diagnosis he received in April 2009. In this regard, the evidence of record contains January 2018 and August 2018 VHA expert opinions on this issue. Both opinions determined that it is less likely than not that the Veteran’s sleep apnea began during active duty service or is related to any incident of active service. The opinions determined that it was difficult to attribute the sleep related symptoms the Veteran described as occurring during service to sleep apnea. The Board accords great probative weight to both the VHA expert opinions. They are persuasive as the rationale is based on accurate facts, including the Veteran’s description of his symptoms, and sound reasoning, and they are consistent with evidence of record, as well as each other. The Board acknowledges Veteran’ statements regarding the onset of sleep related complaints during active duty. As a lay person, the Veteran is considered competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the onset or etiology of sleep apnea. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with sleep apnea. As such, the Veteran’s report of symptoms on its own is insufficient to provide the requisite nexus between the symptoms the Veteran described as occurring during service and the sleep apnea diagnosis he received in April 2009. As such, service connection is not warranted on this basis. However, the Board finds that the evidence is at least in equipoise on the question of whether service connection is warranted under § 3.310 because the Veteran’s service-connected PTSD aggravated the Veteran’s sleep apnea. After a review of the record, the physician who provided the August 2018 VHA expert opinion opined that the Veteran’s sleep apnea may be aggravated by his PTSD. Because the physician who authored the August 2018 VA medical opinion on adequate facts and data and supported the medical opinion with adequate rationale, the August 2018 VHA medical opinion is of significant probative value. Moreover, the August 2018 VHA medical is uncontroverted by the record. In consideration of the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria under 38 C.F.R. § 3.310(b) for service connection of obstructive sleep apnea based on secondary aggravation by PTSD are met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that 38 C.F.R. § 3.310(b) contemplates a baseline to assess the severity of a nonservice-connected disability that is aggravated by a service-connected disability. However, the Board determines that this is more akin to a downstream rating aspect of the claim that should be addressed in the first instance by the RO following implementation of this decision. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Gray